by Tamara Barbeary

The EAT has upheld a tribunal’s finding that an employer failed to take all reasonable steps to avoid an employee being racially harassed by another and could not rely on section 109(4) of the Equality Act 2010 (the reasonable steps defence). The employment tribunal was entitled to find that the equality and diversity training delivered to employees 20 months prior to the harassment was “stale”, there was evidence that the training was insubstantial and that employees had forgotten it. It was also appropriate to find that a further reasonable step could have been to offer refresher training. Therefore, the employer could not show that all reasonable steps had been taken (Allay (UK) Ltd v Gehlen UKEAT/0031/20).

This case illustrates that in determining whether the defence is made out, tribunals will consider the steps that have been taken by the employer in some detail, including the quality of any training, together with how recently it was provided. Ultimately it confirms that an employer must clear a high threshold if it is to establish that it has taken all reasonable steps to prevent discrimination. Employers are advised to revisit their equality and diversity policies and ensure that staff receive appropriate training, including refresher training.

If a current or former employee brings a claim against you, or if you are an employee seeking to bring a claim against your employer, please contact our specialist employment team. We can assess the claim and advise you on the strength of your position. Please contact us on 01494 773377 or hello@lennonssolicitors.co.uk.